Indemnities, with knobs on
SOME PUBLISHERS have long tried to dump all their legal risks onto writers: now some want to make freelance editors liable for other peoples' mistakes, too. Jenny Vaughan explains.
YOU GET USED to it, if you write books. Or, to be precise, certain sorts of books: commissioned non-fiction. You get used to all-rights grabs, and having to waive your moral rights, and knowing that you simply won't get the job if you don't go along with the demands. And you also get used to the all-purpose indemnity clause, like this (my comments in italics):
"You warrant to [Us-The-Publisher] that the said text:
Fair enough - in the sense that you're not actually copying from some other poor soul the words to explain a wholly unoriginal idea
- has not previously been published in any form
A teensy bit worrying - I'll do my best, but I'm not a lawyer... if there is any risk at all, I'd like to think the publishers could check it out - they aren't paying me enough to get legal advice...
- that the manuscript contains nothing libellous
Whoa! Hang about! This is getting a bit philosophical! What is truth? How can I tell? I can only do my best, but I can never be 100 per cent sure - in science and history you're only as good as the latest papers: I've said in the past that Pluto is a planet...
- that all statements contained therein purporting to be facts are true...
So, what's reasonable? But now the killer blow:
- and that any... instructions contained therein are not injurious to the user when followed with reasonable care
- You will keep [UsThePublisher] indemnified against all actions... and costs (including any legal costs)... properly incurred and compensation costs... paid by [UsThePublisher] on the advice of their legal advisers to compromise or settle any claim occasioned in consequence of any breach of this warranty or arising from any claim...
Wow! I have to pay out whether I've transgressed or not, if some opportunist feels like going to court! I'm selling all my rights and taking on all this... Is there any justice in asking me to carry all the responsibility? Every scrap? Who has the money around here?
What is to be done?
The Society of Authors takes what I feel is a rather laid-back attitude to all this: it has apparently tried to get rid of these pernicious clauses, but without success.
Its General Secretary, Mark le Fanu, responds: "we do understand that authors are worried about warranty and indemnity clauses, but it is certainly accurate to say that publishers have been extremely stubborn about making changes to these clauses, even under pressure from top authors and agents with major bargaining clout." Why? "One of their excuses," Mark says, "is that their insurance cover depends on the wording stipulated by the insurer featuring in every contract (and the insurers want to put some pressure on authors to be careful)."
"It is rare," Mark points out, "for publishers to seek recompense from the author."
But I am not reassured. Naturally, I do take the utmost care (of course: I'm a professional...) and I have taken out the NUJ's insurance just in case, and have learned to type with my fingers crossed. So everything should be fine. But... but... it seems just wrong to sign something so draconian and so one-sided... but if I don't, I won't get any work. What is a girl to do?
And it's getting worse. I have now discovered that one book publisher (no names, I don't want to encourage any others) is sending out similar contracts to freelance copy-editors - an area of work which, unlike book authorship, is commonly part of the NUJ's remit.
If this ends with book publishing, the rest of you will be lucky. My experience is that the nastiest practices there tend to get taken up in the rest of the media before you can say "final proofs".